Law & Order: C.L.E.

What happens when the police need prosecuting?

CITY HALL: CLEVELAND CITY COUNCIL CHAMBERS, JAN. 5, 2015, 1:30 p.m.

Police Chief Calvin Williams' atten-HUT lacks a drill sergeant's gravel and militance. He doesn't lean into it. His register and demeanor don't change. He's been standing at the lectern here in the sardine-packed chambers of Cleveland City Hall for four ultra-sober minutes and he suddenly calls to mind a high-school athlete, punished with performance in a spring musical, reciting more than performing his flagship monologue.

He's speaking to the 46 graduates of the 133rd Cleveland Police Academy class on the subject of rigorous training and honor. Like almost all of the ceremony's uniformed speakers, Williams said "Good afternoon" twice when he approached the mic to get what he deemed an adequate response from the overheated guests. (For what it's worth, this middle-school-teacher tactic appears to be the Cleveland Division of Police's lone stab at personality, and the crowd's 100-percent into it).

What Williams hasn't said, however, is anything related to Tamir Rice or the Department of Justice. To be fair, "How about you guys buck the trend and stop using so much excessive force?" probably wouldn't comport with the afternoon's pomp and circumstance. But still, the specter of recent events hovers over his remarks.

"I hope you're prepared ... as a matter of fact I know you're prepared for this journey," he says to the steely eyed cadets. Beyond them, the gathered parents and grandparents and significant others keep themselves cool with programs. Fwap. Fwap. Fwap.

"The actions of a rookie officer can be just as impactful as those of a vet," Williams says.

He intends, it would seem, to impart a sense of responsibility (and maybe even confidence) on this new crop of cops, to let them know that they now have the "authority and the ability" to change citizens' lives, i.e. for the better. But it's impossible not to think of Timothy Loehmann, the Cleveland police officer with only six months under his belt in the department, who shot and killed Tamir Rice on Nov. 22, 2014.

But very few of the speakers this afternoon — not Mayor Frank Jackson, certainly — acknowledge the climate into which these 46 new officers are diving headlong.

Only Matt Zone, City Council's public safety committee chair, has the good sense to append some reminders to his congratulations. (Safety Director Michael McGrath did warn of the dangers of complacency).

"Recent events around our country have highlighted the importance of strong, collaborative relationships between local police and the communities they preserve and protect," Zone said. "Trust between law enforcement officials and the people they protect and serve is essential to the strategy and stability of our city."

The rest of the graduation proceedings are about what you'd expect. Class speaker Emmanuel Velez thanks family and friends in a heartfelt speech. Top scorers in physical and academic exams receive awards. Frank Jackson, resembling less and less a human being in his public appearances, manages to reiterate his boilerplate conviction that public service is the most honorable kind of job out there. All 46 graduates, four of them women, 16 or 17 of them people of color, shake hands with city leaders and smile for the cameras as they receive diplomas. Bagpipes and hankies are pretty heavily involved.

And when Williams says atten-HUT, the new officers stand, lithe and snappy in their navy blues, and at their commander's beckoning, they chant what they call their "core values," printed as an acronym on the program's back flap.

"Pride!" they shout. Professionalism! Respect! Integrity! Dedication! Excellence!"

The reverb is extreme, and a grandma seated in the chambers' second public pew whispers, "God bless them. God bless them all."

Truth is, though, if we put ourselves in the officers' shoes (which is what every prosecutor must do when legally evaluating uses of deadly force), why bother with the blessing of God when police departments already have the blessing of the state and federal courts?

High legal standards and a conflicted, inconsistent prosecutorial system have all but guaranteed that these 46 new officers will be able to do whatever they please on the job — skip work, run reds, chase cars, shoot first — without the inconvenience of trial or even the whiff of serious repercussion.

Just ask the DOJ.

CITY HALL: CITY COUNCIL CAUCUS, JAN. 5, 2015, 12:20 p.m.

DOJ. That's the United States Department of Justice, which released a scathing investigation of the Cleveland Division of Police less than two weeks after Tamir's death. The investigation found that Cleveland police engage in a "pattern or practice of unreasonable force" in violation of the Fourth Amendment, and had been doing so in spite of the DOJ's last visit for similar reasons more than a decade ago.

Though it didn't include the Tamir Rice shooting — the DOJ began its digging in March 2013 and reviewed upward of 600 recent cases, including the November 2012 high speed chase, not to mention untold division documents, community interviews and expert analyses — the findings nonetheless perfectly described the encounter at Cudell Recreation Center: in particular, "the employment of poor and dangerous tactics that place officers in situations where avoidable force becomes necessary."

To be clear, the investigation is an indictment. It's horrifying. The Cleveland Division of Police looks indefensibly guilty, and not so much for the high-profile incidents that dotted local and national news, but for the reels of encounters that never made headlines. These transgressions aren't anomalies. They're standard operating procedure.

That's not to say that every officer wakes up each day with a chip on his shoulder, ready to kill. Comments to the contrary abound, and the bad apple is the easy but apt analogy here. There are a lot of really good, responsible police officers out there who do, as the PR suggests, "put their life on the line" to protect and serve local communities. But the DOJ report was decisive on the extent of the department's ailments.

It's not just officers on the street: CDP officers "shoot people who do not pose an imminent threat," "hit people in the head with their guns," "use unreasonable force against individuals with mental illness, in medical crisis," "carelessly fire their weapons," and so on. It's also the command structure, deeply embedded problems that Frank Jackson still refuses to categorize as systemic failure. It's the inadequacy of reporting uses of deadly force, it's the inadequacy of the internal review mechanism, it's the failure to hold officers accountable for misconduct. It's an absolute shit-show, is what it is.

And this afternoon, prior to the Police Academy graduation ceremony, Councilman Brian Cummins apprises his colleagues that he's not happy with the city's handling of the report.

It's their first gathering of 2015 and many of the councilmembers are happily slurping up their lunchtime soups at the conference table. Kevin Conwell snags two gratis turkey wraps. Most of the conversation — in fact, the caucus' only agenda item — has centered on the nomination of Brian Kazy to fill Martin Sweeney's vacant seat as Sweeney heads to Columbus. Cummins was the only council member who wanted to discuss that item, and he's the only one now suggesting that the city's response to a gravely serious Federal investigation has been anything less than stellar.

"I don't think we're doing enough," Cummins tells the table. He's a Green Party guy and a Jackson critic, banished as such to the role of heretic. But almost everything he says seems to make sense (from a citizen's, not a politician's, perspective). "I think there's a real urgency to this, and even in the midst of budget hearings, I think we need to be having dialogues. The listening tours, they're not necessarily dialogues — they're listening tours. As elected officials, I think we need to step up and do more."

"I disagree," counters Council President Kevin Kelley from the head of the table. It's clear he takes exception to Cummins' tone as much as he does to his comments. "The listening tours are just the beginning. I think the approach of council has been the right approach. I think we have to start by listening to people."

Matt Zone, the listening tours' face and spearhead (as public safety committee chair, recall) says he actually agrees with much of Cummins' sentiments, but that a specific "successful dialogue" Cummins has referenced was actually a "demand session" from local affinity groups.

"They're real definite on what they want," Zone says. "It's easy to get out in front as politicians and do a lot of talking. We need to back up and, frankly, create a safe space. I see us in 2015 delving into a lot of topics like this."

But that's different than transparency, suggests Cummins, who's concerned among other things that the DOJ report isn't even available on the city's website. (Cummins has since posted it on his personal blog.) Councilman Marty Keane calls transparency a "buzzword," and says that every day, council members are advancing the goals of the DOJ report by listening to constituents in their communities. Kelley encourages Cummins to present his suggestions to Zone.

Says Zone to Cummins: "The stuff that you raised is important, but we can't get it all done yesterday. There's a process to go through."

CITY HALL: MAYOR'S RED ROOM, DEC. 11, 2014, 11 a.m.

Ah, the process. Hands down, it's Cleveland officials' favorite word in the old Merriam-Webster, and certainly Mayor Jackson's favorite word as he addresses the media this morning, a week removed from the DOJ report.

Jackson proposes two central theses. The first is that pieces of the DOJ investigation (huge swaths, by the sound of it) are inaccurate. As such, the city has begun an internal review to determine what is true and what is not. The Orwellian overtones — "We don't like it, therefore it's false" — don't seem to concern the gathered media, who dutifully ask about next steps and emotional reactions.

The second big point Jackson hammers home is a variation on the first, that the inaccurate report doesn't "go far enough," that it focuses too much on the police themselves without accounting for the role of external arbitrators. His remarks at the press conference are mind-boggling.

"When we do discipline people," Jackson says, "and when we do attempt to hold people accountable ... they go to an arbitrator. The arbitrator overturns it. We send stuff to have criminal prosecution. That doesn't necessarily happen. And so we — we just believe that if we're going to really look at the systemic part of this, that it really does need to be correct. Then that — that it should include not just the Division of Police, but more than the Division of Police."

Fine, sure, great, but the arbitrator red herring doesn't discount the misconduct of officers any more than the fact that "I Can't Breathe" T-shirts were manufactured in sweatshops discounts the actions of the Staten Island police who killed Eric Garner, or the sincerity of professional athletes' response.

Now, if you've been following Jackson's comments on the police department he oversees, you'll be alarmed that he acknowledges anything "systemic" exists at all. Ever since November 2012, he has been insisting that systemic failure is a rhetorical cop-out (no pun intended), that it removes individual responsibility from the equation.

He addresses the issue head-on this morning.

"I continue to say there is not systemic failure. There are problems with our system. And that the DOJ, even though we don't agree on all the findings or the supporting data or examples they use to get toward those findings, it clearly points out that we have some problems that we will agree to, and we will agree how to resolve those problems ... But in terms of systemic failure, I maintain that there is no systemic failure."

So, to review, due to the city's overarching disavowal of the DOJ — their findings and the supporting data and the examples they use to get toward those findings — they're now supposedly knee deep in an internal review:

"I want to re-emphasize," says Jackson during the Q&A portion, "that their findings in the data and the conclusions they reached with the examples that they used, we don't necessarily agree with all of that. So we will be delving into — we're already delving into that and we'll be reviewing that to see what in there is accurate, which is not accurate, which is a misstatement, which are examples that may be factual, may not be factual."

When a reporter asks if Jackson was at all troubled by the fact that investigators (within Internal Affairs and the Office of Professional Standards) admitted that their goal was to clear officers after wrongdoing, Jackson replied:

"Well, it troubles me if that's accurate. One of the things that we're doing is we reviewed the report — and we're delving into it — is actually having conversations with those officers who would have made statements like that."

Excuse me?

"We're just not accepting it because the DOJ said it," Jackson says later. "We have to actually look into this and review it for ourselves. We will ferret out from the DOJ's report in our internal review what we believe are legitimate concerns ... Rather than just be helter-skelter about this, we're going to do a complete review, and when we complete that review you will be privy to it just like the rest of the world."

One last baffling example: When WKYC's Tom Beres asks Jackson if anything in the report shocked him, Jackson said that no, he wasn't shocked because he had been primed for the material.

"Now if your question is would I be shocked if all of what they said I believed to be true? Yeah, I'd be shocked then, because that would mean that, you know, a whole lot of things." (It's worth noting here that Cleveland has re-elected this man multiple times.)

It's important to see Jackson's own words at length here, and in print, because it demonstrates the city's tendency toward deflection and the leadership's utter inability to take responsibility. We cannot overstress how preposterous the city's response to the report has been. Accountability, like transparency, has become another one of their meaningless PR tags.

Flying in the face of the accountability Jackson exalts, the men who have overseen this cancerous division have been rewarded for their efforts. Michael McGrath was promoted from police chief to safety director, in part, Jackson says, because he was the only one who wanted to hold people responsible for the November 2012 shooting. Former Safety Director Marty Flask was then appointed "special executive assistant to the mayor." Lord knows how he spends his official time. Though multiple elected officials have called for the resignation of Flask and McGrath, Jackson refuses to entertain the idea.

Later in December and into January, the city — via its communications team — can't provide any meaningful information about the internal review's progress.

On Dec. 16, the internal review is said to be "ongoing" and will be completed before official meetings are scheduled with the DOJ to negotiate the consent decree. (The consent decree is the binding settlement in which the city must take specific actions toward addressing the issues described in the report. Should the city's leadership continue to call its findings false and then refuse to come to a settlement with the DOJ, the Feds will sue.)

On Dec. 30, after some expected Yuletide delay, a spokesman writes that the city is "still reviewing the report as we prepare to negotiate with the DOJ regarding the consent decree." No specifics are provided.

On Jan. 5, Scene's questions regarding the progress of the internal review and consent decree meetings are ignored.

On Jan. 8, when Scene asks specifically about the total number of meetings and hours dedicated to the internal review, a spokesman says only that he'll "get some details shortly." Another communications team member replies later in the day that every aspect of the report is being addressed: "It's more than 50 percent done, but there are still more meetings and discussions ahead."

Mayor Jackson has not yet specified (and, let's face it, probably never will) what exactly he believes to be untrue.

LAKESIDE PLACE: LAW OFFICES OF FORMER CITY PROSECUTOR ANTHONY JORDAN, DEC. 22, 2014, 10:30 a.m.

But if, as Frank Jackson insists, the issue lies with external arbitrators, we thought we'd take a look at how uses of deadly force cases are arbitrated, and why it's so difficult (locally and nationwide) to prosecute on-duty officers, and why, subsequently, officers can patrol the streets in the comfort of their total impunity.

Anthony Jordan was the city's chief prosecutor for two-and-a-half years during Jane Campbell's administration. He's currently a criminal defense attorney. He says that his tenure was "rather tumultuous," marked by oversight of "we'll just call them improprieties": a widespread overtime scandal, dereliction of duty, excessive force cases, use of deadly force cases, the gamut.

For some background: Whenever a crime is committed in the city, the law enforcement is handled by the municipal police force (in this case, the CDP), and then charging papers are brought to the city prosecutor for review. If the crime is a felony, it's sent over to the county prosecutor. (Most of us have seen endless iterations of these proceedings on our preferred Law & Order spinoffs).

Back in Jordan's day, officer-involved shootings were within his jurisdiction. Since April 2013, they've gone over to the county immediately at the behest of County Prosecutor Timothy McGinty, who — notwithstanding campaign contributions from the police union — is committed to transparency and "thorough, impartial investigations." More on his office in a moment.

But when Jordan was in charge, he did the investigating himself. If he decided to recommend charges, only then would the case be transferred to the county.

In a 2011 study by the University of Pittsburgh School of Law about the relationship between police and prosecutors, aptly titled The Interaction and Relationship Between Prosecutors and Police Officers in the U.S. and How This Affects Police Reform Efforts, author David Harris suggests three key reasons why prosecutors rarely even attempt to prosecute officers:

1.) Prosecutors and officers work together and often know one another well. They may feel "bound by loyalties" born from their coexistence, to say nothing of the extent to which prosecutors rely on police for evidence and information in the cases they're actively investigating.

2.) There are serious political downsides — being painted by opponents as "soft on crime" or "anti law-enforcement," plus the inevitable alienation of powerful police unions.

3.) Criminal prosecutions against police officers are extremely hard to win, so they don't make "especially attractive cases for ambitious district attorneys who want a strong record."

Jordan acknowledges the "coziness" implicit in Harris' first assertion, saying that as a member of the mayor's cabinet, the chief prosecutor has regular interaction with both the safety director and the chief of police in weekly meetings. It also becomes difficult not to believe the dramatic stories of officers on the streets, even when those stories may be enhanced or changed. You begin to sympathize with them, Jordan says, to see the world as they do.

But as to the other pressures, Jordan says he never succumbed to them, even when it was made clear that police were unhappy with his decisions.

In one historic, high-profile case from 2004, Jordan attempted to prosecute an officer for reckless homicide. Officer Daniel Jopek had shot a fleeing man in the back four times after a routine traffic stop. It was historic because it was the first time in 15 years that homicide charges had been filed as a result of an on-duty police action.

"At the time, I thought that was a very conservative charge," Jordan says, looking over some old files at a glass top conference table in his office. Jordan's a handsome black guy in his 40s and speaks deliberately, from memory.

Jordan gave the case over to the county, whereupon it was presented to a grand jury and no-billed. Officer Daniel Jopek Jr. (who had by the way killed another person on duty two years prior), wasn't indicted. Jordan was furious. He took it up with Law Director Subodh Chandra, and met with the county prosecutor, who said that he'd presented the grand jury with the possibility of lesser charges, but Jopek got off the hook.

The only result: a lawsuit, filed by Jopek against Jordan.

'There is no question in my mind," the former prosecutor says this morning, "that if this were any other citizen, any other person, under investigation for this killing, they would've been criminally liable to some degree. He gave a statement — police give what they call Garrity statements — which narrated the events in a way that was contradictory to the physical evidence as I saw it."

These police statements, which wouldn't withstand even the most basic and amateurish cross-examination in a public trial, are the regular output of the Cleveland Division of Police. Changing the narrative of events has long been something of a calling card.

Have a look at the way police leadership scrambled to change their story of the Tamir Rice shooting as information was gradually made public. Originally they'd said Tamir had been sitting with a group of people in the Cudell gazebo (untrue); that a responding officer got out of the car to deliver an order three times (completely untrue); that officers Garmback and Loehmann thought Tamir's gun was real because the orange tip had been removed (clearly an ex post facto observation, because the tip of the gun was never visible to them).

In 2013, the Police Executive Research Firm conducted a "policy and practices" study and issued 26 recommendations regarding training for and reporting on use of force cases. In August 2014, the CDP updated their use of force policies to implement many of those recommendations.

In particular, the reporting on uses of less lethal forces were substantially modified to increase "accuracy and completeness." It is now division policy, for example, that supervising investigators interview not only the officers involved and the person upon whom force was used, but "all available witnesses." Additionally efforts are made to clarify inconsistent statements from officers during an investigation.

It's also important to note that within the updated CDP "use of force" policies, the only substantive change to the "firearms" section is as follows: Officers shall not discharge any firearm at or from a moving vehicle unless deadly force is being used against the police officer or another person by means other than the moving vehicle. Sound familiar?)

But those policies weren't in place back in Jordan's day. When he left his post as chief prosecutor for the city, six use-of-deadly-force cases had stacked up. So when Frank Jackson arrived in 2005, he appointed a special prosecutor to investigate.

737 BOLIVAR: SCENE MAGAZINE NERVE CENTER, JAN. 7, 2015, 9:02 a.m.

Over the phone, Ellen Connally says she's not sure why she was brought in as special prosecutor back in 2006. She has just retired from her role as Cuyahoga County council president and is now speaking to Scene from her home. She says she suspects the city wanted someone relatively neutral, and equipped with credentials like hers. She'd worked with the law department before, and was a former judge.

Connally, with a small investigative team, reviewed the six use-of-deadly-force cases and ultimately — to the dismay of the NAACP and other outraged activists — didn't recommend charges in any of them.

"I spent a lot of time really trying to take the opposite position to be fair to the public," says Connally, "but I just couldn't find the law to substantiate it."

Connally says the toughest of the six, by far, was the Brandon McCloud case, in which two officers shot a 15-year-old 10 times after storming into his bedroom at 5 a.m. McCloud had been hiding in his closet with a knife.

Connally was loathe to use the word "justified" in her assessment of that case, calling police actions "overzealous," but still couldn't find a law by which to prosecute them. When her decision was challenged in the 6th Circuit Court of Appeals, her ruling was upheld.

The Cleveland police officers who shot and killed McCloud never saw a public trial, where they might have been asked why they woke up Judge Timothy McGinty to obtain a search warrant at 2:30 a.m., and why they never bothered to tell their supervisors that that was their intention, or for that matter any number of rules violations noted by the Office of Professional Responsibility, which included numerous contradictions and false claims in their narrative of events.

As we've mentioned, the legal standards in these cases are extremely high, and are meant to protect police officers and their right to defend themselves. Central among them are the standards established in the 1989 Supreme Court case Graham v. Connor. That case created what's called the "objective reasonableness" standard, which decrees that use of force cases must be judged from the perspective of a reasonable officer possessed with the same information and faced with the same circumstances as the officer who actually used force.

The big upshot to Graham v. Connor is that you can't analyze uses of force as the public does, in hindsight. So in the case of Tamir Rice, for example, no prosecutor could use the fact that Tamir was only 12 years old, or that the gun was fake, as factors in their assessment. Based on the information provided to Garmback and Loehmann, the officers presumed they were dealing with a non-juvenile and a real gun.

The Ohio Supreme Court addressed and expanded on that issue in State v. White 2013, acknowledging that an officer's "mistaken belief" does not detract from reasonableness: "If an officer reasonably perceived a threat of attack by a suspect, apart from the actual attack, to which the officer may respond preemptively; if his perceptions were objectively reasonable, he incurs no criminal liability even if no weapon was seen or the suspect was later found to be unarmed, or if what the officer mistook to be a weapon was something innocuous. (Emphasis Scene's).

If precedent holds, that doesn't look good for Tamir and his supporters.

But what about the slipshod tactics? If the use of force is justified thanks to the vast latitude provided by state and federal courts, but an officer still orchestrates an "avoidable situation where the use of force becomes necessary" — e.g. Garmback driving up on the grass at Cudell, mere feet from Tamir — how do you punish them?

"I don't know," says Connally. "Legally, there's not much middle ground."

900 EUCLID AVE.: CITY CLUB BUILDING, JAN. 9, 2015, 12:35 p.m.

County Prosecutor Timothy McGinty speaks to a packed house this afternoon in a talk called "Efficiencies and Accountability." It's a "report to stakeholders" about his first two years in office. The whole thing's pretty self-congratulatory (as you might expect) and McGinty celebrates how he has used techniques from the business world to adapt and transform his office, even going so far as to reference Wal-Mart.

After he invites various department heads to give mini reports on their efforts, and mentions some highlights — rape kits! Ariel Castro! Christina Adkins! — he submits to the traditional City Club Q&A. It's clear people want to know about the way police officers are handled by the judicial system around here.

Councilman Zack Reed kicks things off with a question about the officers who were recently discovered to have stolen lotto tickets on the near east side. He says he was told the case was going to McGinty's office. What's the progress? And how come officers are being treated differently than regular citizens? (McGinty's says he's not familiar with that case).

One guest inquires whether or not McGinty should feel compelled to recuse himself from investigating high-profile police misconduct cases because he receives campaign contributions from the police union. McGinty, reading from a prepared statement, says all police officers want justice. Another guest wants to know about the racial makeup of the victims McGinty prosecutes. He says the stats are available online.

When a woman stands to ask whether or not Timothy Loehmann will be prosecuted for murder, McGinty staunchly defends the police. He reiterates that "without question," they have the toughest and most dangerous job in the city. He invites the guests to remember parades downtown to honor fallen policemen. He begs the audience to put things in perspective, to remember that police officers put their lives on the line every day.

That's true, but the last time a Cleveland police officer was killed in the line of duty was March 2008. Derek Wayne Owens was pursuing four fleeing criminals on foot and was shot in the abdomen.

On the flipside, since April 2013, the county has reviewed seven use-of-deadly-force cases, five of them involving the Cleveland Division of Police. Four more are in the pipeline, says McGinty's director of communications, Joe Frolik. In all but the Russell/Williams chase, in which the county sought and got six indictments against Cleveland police officers (five for dereliction of duty; one, against Michael Brelo, for voluntary manslaughter), the county has reviewed these cases with a grand jury and the uses of deadly force have been ruled justified.

"We believe we're capable of conducting a thorough and impartial review and presentation to the grand jury," says Frolik, when asked if the county is the ideal agency to investigate use-of-deadly-force cases. "But remember, the standard is pretty high."

Understood, but so too are our tempers.

Scene will be taking a closer look at how the Cleveland Division of Police operates — its leadership, policies, procedures — over the next several weeks. Stay tuned for information on settlements in use of force cases, police exams, and the genesis and metastasis of its culture of impunity.

About The Author

Sam Allard

Sam Allard is the Senior Writer at Scene, in which capacity he covers politics and power and writes about movies when time permits. He's a graduate of the Medill School of Journalism at Northwestern University and the NEOMFA at Cleveland State. Prior to joining Scene, he was encamped in Sarajevo, Bosnia, on an...
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